The opinion of the court was delivered by
Beasley, Chief Justice.From the statement of facts prefacing this opinion it will be perceived that the first question submitted to this court for its advice relates to the legal basis of the action. Will a suit lie against a municipality for damages done to land adjacent to a public sewer by wrater «scaping therefrom by reason of a break in such sewer, occur*249ring through faulty construction, and because the same was not kept in proper repair ?
The general subject thus introduced is not a novel one to the courts of this state. As long ago as the year 1840, in the case of Freeholders of Sussex v. Strader, 3 Harr. 108, it was declared, in the language of the opinion : ‘‘ That where a corporate body, whether of a municipal or a private character, owes a specific duty to an individual, an action will lie for a breach or neglect of that duty whenever such breach or neglect has occasioned an injury to that individual; but if such corporation owe a duty to the public, a neglect to perform it, although every individual composing that public is injured, some more and some less, yet they can have no private remedy at the common law.”
The plaintiff in this reported case had sustained damage in consequence of his horses turning off from the abutment of a county bridge, which was imperfectly constructed, being without railings or parapets. It was admitted that the defendants were in default in their public duty to maintain this bridge in a safe condition, and that the plaintiff had suffered loss by reason of such neglect, nevertheless, the judicial interpretation of such facts was that they laid no foundation for an action against such public authorities.
Repeated adjudications have followed in the track of this decision, and eventually, in the case of Livermore v. Freeholders of Camden, 2 Vroom 508, the doctrine was affirmed and applied in its full vigor by the court of last resort.
Without, therefore, referring to the other cases, it is sufficient to say that to this extent the law, in this department of it, is not now open to discussion.
But the question supervenes, Does this rule apply to the facts of the present case ? The courts have said, in a conclusive form, that when the neglect of a public duty results in a public injury, an individual cannot bring an action founded on his own particular loss. In such instances the public has been wronged and the only remedy is by indictment. But no case in this train of decisions has gone the length of hold*250ing that when, by breach of such public duty a private damage and no public damage has been done, that the person so exclusively damnified is remediless. It is decided that when by such official malfeasance or neglect a public nuisance has resulted, the remedial procedure is a prosecution on the part of the state. The inquiry now is, What is the legal rule when a private nuisance alone has arisen exclusively from such a source ? In the ‘principal case referred to, the neglect complained of — that is, the absence of proper care in the construction or reparation of the bridge — was a public evil affecting the body of the people; in this case the defect in the sewer is injurious, apparently, to the plaintiff and one other contiguous land-owner alone. Consequently, in the case in hand, as the mischief to the community, if any, is not of a magnitude sufficient to justify an indictment, while, at the same time, it damages the property of an individual, it is obvious that unless such a suit as the present one will lie, the wrong cannot be redressed by any method known to the law.
After careful consideration, my conclusion is that the general rule established by the line of cases referred to is not applicable to the facts present in this instance, and that whenever an indictment will not lie for such a neglect as is here complained of, attended with such consequences as have here ensued, the person thus specially injured may, in order to right the wrong, resort to an action. The injury is altogether private in its character and is capable of being continued indefinitely, so that under some circumstances the land might, in substance, be applied to the public use without compensation. The injustice done and the necessity for a remedy are alike obvious, and it would be to push to an extreme the doctrine which, under most circumstances, gives immunity to the community in case of the misconduct of public officials.
Nor have I found any decision which, under circumstances similar in general character to those above stated, has denied the right of the person damnified to an action. It is true that the reasons assigned for allowing such remedy have been various and not altogether accordant, but it is not observed *251that anywhere such remedy has been refused. And this has-been the course sanctioned even in those jurisdictions within which the exemption of the public from responsibility for the neglect of its officers has been maintained with the utmost, vigor. This is notably so in the State of Massachusetts.. There it has been uniformly laid down that as a general rule-no private action is maintainable against municipalities for the-breach of any corporate duty unless under the force of some-legislative enactment. Many cases to this effect will be found collected in Hill v. Boston, 122 Mass. 344, in which decision-it was adjudged that a scholar sustaining an injury by reason of the defective condition of a public school-house did not. become possessed of a right of action against the city. But, notwithstanding the prevalence of this general rule thus-strongly applied, it has been settled by the courts of that commonwealth that in case of neglect in the construction or-reparation of a public sewer, and a consequent damage to-private property, an action is sustainable in the name of the. person thus injured against the municipal corporation. Child v. Boston, 4 Allen 41; Emery v. Lowell, Id. 104. And in New York a similar decision is to be found in the case of Bailey v. Mayor of New York, 3 Hill 531.
The conclusion to which this court has finally come is this That the defendant is not responsible for the consequences of a break in the sewer in question, per se, even though it be-the result of the carelessness of its own agents, for the public-is not responsible for such misfeasances of its officers; but when such break has occurred, occasioning a private nuisance exclusively, and the public authorities have been notified of the accident, we think that then they owe a duty to the individual to put the sewer in a proper condition, and that for the non-performance of such duty that an action will lie.
The next interrogatory relates to the alleged action of the sewer commissioner in conducting the water from the break in the sewer over intervening ground on to the lands of the plaintiff.
*252The question is whether the city is answerable for the consequences of such conduct.
This act was a mere trespass, done without any pretence or •color of right, so far as the case shows. The city itself could not lawfully do the act in question, and therefore could not .authorize its officer to perform it. The consequence is it cannot be claimed that in committing this wrong the officer was •acting ex officio, for it cannot be implied that the municipality, by merely putting a man in office, authorized him to commit trespasses at will.
The fourth and last question is whether a mortgagee can .recover damages to his mortgage interest in this class of cases.
The inquiry is loosely stated, for the court is not told •whether the mortgagee referred to is in possession or not of the premises.
If in possession after condition broken, it is conceived that ■the mortgagee, as to trespassers, would be deemed, in a court •of law, the owner out and out. In such case he could bring .suit as though the title to the property was vested in him un•conditionally.
But it is presumed that the question propounded is directed to the situation of a mortgagee being out of possession. In .such an attitude his right of suit is limited to the redress of such wrongs as in their consequences impair or destroy his .security. Such right of redress would seem to be co-extensive with all trespasses and wrongs, whether direct or indirect, Raving such injurious effect. The law upon this subject is to be found in Jackson v. Turrell, 10 Vroom 329.